Satisfying his promised timeline, Judge James E. Boasberg issued a decision (pdf) today finding the NLRB’s election rule invalid.  Quoting Woody Allen that "eighty percent of life is showing up," Judge Boasberg found that the rule was invalid because one of the NLRB members did not participate in the vote to adopt it.  

When the final rule was approved last December, Member Hayes (R) did not vote on it.  Two other members, Chairman Pearce (D) and Member Becker (D), did so, and voted in favor of the rule.  While Member Hayes had participated in earlier votes on procedural issues related to the rule, and even made his opposition to the rule known, that was not enough in the court’s view.  Rather, in a vote that was held electronically, Member Hayes had to do something in order to "show up" and constitute the three-member quorum required in the statute, and reaffirmed by the Supreme Court less than two years ago.

Accordingly, the judge ruled in favor of the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace.  The judge held that elections must continue to be conducted under the old rules.  The court noted, however, that nothing prevents the NLRB from holding a proper vote with a quorum present to adopt the rule again.  The court did not opine on any of the substantive arguments that were made against the election rule.

For the labor professional, the court’s ruling may ultimately just delay the adoption of new election rules.  The NLRB now has a full five members, although there is controversy surrounding those appointments.  Another vote on the rule will present an opportunity to challenge the appointments in court.  Judge Boasberg’s decision not to reach the substantive arguments against the rule means that any future litigation may still need to address those issues as well.

The court’s decision, then, likely removes the immediate concern employers had with the adoption of the election rule.  It is not, however, an issue that employers can now set aside as resolved, but rather is yet another one that the prudent employer will want to continue to monitor.  The NLRB may announce its position on the decision soon.  If so, the NLRB’s position will be covered in this blog.